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Kaufusi v Tauniuvlau [2001] TongaLawRp 27; [2001] Tonga LR 155 (9 July 2001)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

L 902/99

Kaufusi

v

Tauniuvlau

Ford J
30 April, 8 May 2001; 9 July 2001

Land law – declaration sought that lease was valid – declaration issued and defendant restrained

In the early 1990s the plaintiff, 'Ana Kaufusi, approached a relative, Tevita Uluilakepa, to see if she could acquire some land from his tax allotment at Haveluloto which could be set aside for her eldest son who was then only eight years old. Uluilakepa suggested that, until such time as her son came of age, the plaintiff should take a lease in her own name of lot 23 which he was prepared to make available. The plaintiff agreed to the proposal and she paid the landholder an agreed consideration of $3000 at the time the arrangement was entered into and a further sum of $2000 later upon registration of the lease. The application to lease was duly approved by the Minister of Lands and by Cabinet and the lease was registered in the plaintiff's name on 10 Sept 1992. The lease was for a term of 20 years from 10 Sept 1992 and the rental was fixed at $50 per annum. Nothing was built on the land but the plaintiff said in evidence that she looked after it and paid the agreed rent and there was no problem until one day in March 1999 when she visited the 'api and noticed that someone had recently cut the grass and carried out some clearing work. She made inquiries as to who had been trespassing on her land and found out it was Sione Tauniuvalu, the defendant. The plaintiff arranged for a solicitor's letter to be written (dated 22 March 1999) to the defendant warning him not to go on to her allotment without permission otherwise she would take him to Court. The defendant ignored the plaintiff's letter and some time later the plaintiff noticed that he had started building a concrete block house on her land. She approached her solicitors again and on 14 June 1999 a further letter was written to the defendant. On 17 June 1999 the defendant's solicitor, Mr Hola, responded to that letter. He said that the allotment belonged to Naitingikeili Kaufusi and he had given it to the defendant. The plaintiff's solicitor responded by letter on the same day stating that "the court case" did not affect the validity of the plaintiff's lease and the defendant was warned again to keep off the property. The defendant did not heed the warnings, however, and the plaintiff issued proceedings to bring matters to a head. The writ and statement of claim were filed in August 1999 and on 3 September 1999 the plaintiff obtained an injunction restraining the defendant from entering the allotment. The plaintiff sought a declaration that her lease was valid and she sought orders evicting the defendant from her land and restraining him from entering upon or continuing to build upon the land.